balance-of-powers

Scalia during a 2006 event sponsored by the Federalist Society and the American Constitution Society. (CQ Photo by Scott J. Ferrell)

The death of Justice Antonin Scalia, during one of his many trips far from the capital and underwritten by outsiders, has revived some interest in Supreme Court ethics.

But as with so many of the issues Congress could decide to take on, only a relatively small number of lawmakers are talking seriously about legislation. And within that group, the Democrats and Republicans have totally different approaches for regulating the court’s behavioral standards. So the status quo is highly likely to hold fast this election year, and may well outlast a fight over filling the open seat on the court that’s looking likely to stretch into 2017. When Scalia died in February, he was on a hunting trip as the guest of Houston businessman John Poindexter, who owns a company that was the successful defendant in an age discrimination suit the high court decided against reopening just last year.

Meadows, R-N.C., is one of many House members who have expressed support for Senate Republicans' approach to the Supreme Court vacancy. (Photo By Tom Williams/CQ Roll Call)

What if a single story dominated Congress for an entire election year, and four out of every five members had no formal avenue for getting involved?

That’s not a rhetorical question now. With the Great Supreme Court Standoff entering its third week, one of the most politicized balance-of-powers showdowns of modern times is still supposed to remain entirely between the president and the Senate. As anyone with a passing grade in civics understands, the House of Representatives has no official role in the “advice and consent” part of the confirmation process.

Twenty years ago, it was enacted as a classically obscure legislative rider, an opaquely worded few paragraphs, crafted by both parties, which each side agreed to keep quiet before its insertion into sprawling must-pass legislation focused on a wholly different issue.

Fifteen years ago, when the provision was first put to use, some lawmakers decried the unleashing of an “atom bomb” that would topple the balance of powers and neutralize the authority of federal regulators.

“Please don’t get in the way” is one way of synthesizing Tuesday night’s message to Congress from President Barack Obama.

On many of the big things that matter most, he asserted, he’s positioned to leave the country in much better shape than how he found it and how his would-be Republican successors describe it — tacitly urging the Hill’s GOP to resist legislative gamesmanship that while playing into presidential politics might crimp the hopeful trajectory of his final year.

Once more with feeling. Obama is preparing his last State of the Union Address. (CQ Roll Call File Photo)

Perhaps the surest prediction about the next State of the Union Address is that it’s going to be the last speech afforded that lofty title for fully two years.

The second reliable forecast is that on the night of Jan. 12, President Barack Obama will take a non-traditional approach to his final annual appearance before a joint session of Congress. The first of those expectations is borne of modern precedent; the second comes from the White House itself.

"Politics makes strange bedfellows” is one of the oldest adages around. These days, the prospect of another war is making for some particularly strange bedfellows in the House.

An extraordinarily bipartisan group of 35 members, hoping to benefit from the heightened attention on Congress in the session’s closing days, is pressing anew for a debate on authorizing the use of military force against the Islamic State. “Our fight isn't going away anytime soon, which is why it is high time Congress fulfills its constitutional duty and debates our role in the Middle East,” Walter B. Jones, the iconoclastic North Carolina Republican leading the effort, said in an impassioned floor speech Tuesday. Until members cast such a vote, he said, “I don't even think we have a right to criticize the president, quite frankly.”

Tennessee's two GOP senators, Lamar Alexander, left and Bob Corker have signed off on Crenshaw's nomination, but the nomination is still stalled. (Chris Maddaloni/CQ Roll Call File Photo)

To predict how the judicial wars between this Republican Senate and President Barack Obama will end, keep an eye on labor lawyer Waverly Crenshaw Jr.

A quarter-century ago, he was the first African-American hired at one of Nashville’s most prominent law firms. Ten months ago, he was chosen for the opening on the local federal trial court. Five months ago, with the blessing of both of Tennessee’s Republican senators, he was endorsed without a dissenting voice in the Senate Judiciary Committee. And since then ... nothing, except that as of last week the judgeship had been vacant a full year, and the backlog of cases has grown such that court administrators have declared a “judicial emergency.” Yet there is a decent chance Congress will go home for the year without acting on him or any of the dozen others whose nominations have advanced just as far. That would be a signal the process of confirming judges, already at its slowest pace in more than half a century, is grinding to a halt earlier than ever in the life cycle of a modern two-term president.

Loy says there is little consensus on what would constitute legally binding language in a climate agreement. (Tom Williams/CQ Roll Call)

In the simple world of civics class, the president gets to make treaties and they’re binding on the United States when two out of three senators say so.

In today’s complex political world, that’s almost never how it plays out. Beyond baked-in partisanship and steep distrust of whoever occupies the White House lies this obstacle to Senate ratification of any international agreement: The protection of American sovereignty is among the most basic conservative objectives. That helps explain why 2010 was the last time two-thirds of senators lined up to approve a treaty, and why the Obama administration now wants to make sure no foreign policy agreements get labeled with “the T word.” This year’s Iran nuclear agreement would have had zero chance had it been written as a treaty; the same would be true for any document produced at the environmental summit in Paris. (The 54 Republican votes are a score more than what’s necessary to guarantee Senate rejection of any treaty.)

The path from the legislative to the executive branch is as well-worn as usual, with five senators and a former senator now hoping to succeed another onetime senator as president and 15 former members joining the Cabinets of the Obama and George Bush administrations.

The route between the legislative and judicial branches, by contrast, is as weeded-over as it’s ever been. No one has gone from Congress to the federal bench in 30 years, and the last Supreme Court justice with any congressional experience retired in 1971.

That out-of-the-box theory was unspooled the other day by the ultra-right wing Rep. Trent Franks of Arizona. In his view, Speaker John A. Boehner’s agenda was sufficiently conservative to merit the good graces of almost all the most confrontational House Republicans and their like-minded constituents. But Boehner’s commitment to the cause, Franks posited, got unfairly overlooked because so little legislation got through Congress. And that, he said, was the fault of the bedrock Senate rule permitting 40 senators to block almost anything — including so much of what the House majority has wanted so badly for the past five years.